Are journalists protected by anti-SLAPP statutes? Until last week, the likely answer would have been: “probably not,” at least in Massachusetts. But that was before Cardno Chemrisk, LLC v. Foytlin, a recent opinion by the Massachusetts Supreme Judicial Court (which we Bay Staters refer to as the “SJC”). The case involved a Huffington Post story about a chemical consulting firm involved in the Deepwater Horizon oil spill litigation. The case didn’t answer every question a journalist might have about the protection available under the statute, but it was certainly a game changer for anyone who might reasonably be described as an “activist” or “opinion” journalist. Hey bloggers: you especially ought to quit slouching in your desk chairs and take notice.

What is Anti-SLAPP Protection?

“SLAPP” stands for “strategic lawsuit against public participation,” often defined as a meritless lawsuit brought in order to deter or punish a citizen for petitioning the government, in other words, for exercising his or her political or legal rights. The stereotypical example involves a citizen speaking out against a nearby housing development at a town zoning meeting, who is then sued by the developer for defamation; the citizen is discouraged from further speech whether or not what she had to say was true. Anti-SLAPP statutes offer some protection against such suits, usually by providing for expedited dismissal and attorneys’ fees. For a more complete discussion of the Massachusetts anti-SLAPP statute’s history and parameters, see my Boston Bar Journal article from 2014.

What is Petitioning?

One of the most heavily litigated anti-SLAPP issues is the definition of “petitioning.” The Massachusetts statute, Chapter 231, Section 59H of the Massachusetts General Laws, defines petitioning to include not just statements made directly to government bodies, but also those “made in connection with an issue under consideration or review” and those that are “reasonably likely to enlist public participation in an effort to effect such consideration.” In the 2014 case of Town of Hanover v. New England Regional Council of Carpenters, the SJC held that the anti-SLAPP protection extended not only to the citizens who were challenging a controversial expenditure of town funds, but also to a union who was working behind the scenes to provide organizational and legal support to the petitioning citizens. This means that the law protects not only persons petitioning to protect their own private rights, but also those looking to “advance causes in which they believe.”

But does it also extend to the journalists who write about that petitioning activity? Put another way, can an article about petitioning activity also itself be petitioning activity? If you read only the SJC’s 2010 opinion in Fustolo v. Hollander and nothing else, you’d probably think the answer is “no.”

Fustolo v. Hollander: Journalists are not petitioners . . .

Fredda Hollander was a resident of Boston’s historic North End, and was actively involved in several nonprofits and advocacy groups that took positions on local zoning issues. She wrote some articles about her advocacy activities and submitted them to the Regional Review, a local newspaper. The editors of the paper must have liked her style, because they hired her as a paid reporter. In that capacity, Hollander covered many of the same issues in which she was also personally interested. However, Hollander swore up and down (and in an affidavit) that, when it came to her reporting, she was trying to be objective and not share her personal views.

Some of Hollander’s reporting involved the dealings of local real estate developer Steven Fustolo, as well as the community meetings (i.e., petitioning activity) in which those dealings were discussed. Fustolo, unhappy with the coverage, sued Hollander for defamation. Hollander filed an anti-SLAPP motion to dismiss, claiming that her reporting was related to petitioning activity, and also that it was reasonably likely to enlist further public participation, and therefore should be protected by the statute.

But the SJC disagreed. Hollander, in her role as a reporter, was not exercising her own petitioning right. As the court stated, her “articles did not contain statements seeking to redress a grievance or to petition for relief of her own.” Rather, as a journalist she was trying to objectively report about other people seeking to redress their own grievances (notwithstanding the fact that she privately shared those grievances). Therefore, her articles were not petitioning activity, she was not entitled to bring an anti-SLAPP motion to dismiss, and she would have to defend the defamation suit. (You can find a nice tribute to Ms. Hollander, who settled the case in 2010 but then sadly passed away last year, at this link).

Cardno v. Foytlin: . . .except when they are.

Only a few weeks after the SJC’s Fustolo opinion came out, a catastrophic explosion occurred at the Deepwater Horizon oil rig in the Gulf of Mexico, resulting in a massive oil spill, extensive cleanup efforts and a multi-district federal litigation based in Louisiana.

Cherri Foytlin is a resident of the affected region and full-time environmental activist. She has participated in numerous advocacy activities related to the Deepwater Horizon spill, including meeting with federal agencies and participating in public protests.

In 2013, Foytlin wrote an article (with some contributions from Karen Savage, an eighth grade math teacher residing in Boston) about the effects of the disaster and the cleanup efforts. The article appeared on the Huffington Post’s “Green Blog.” Foytlin’s byline stated that she was a “Gulf Coast based author and journalist.” The article included a discussion of the ongoing federal litigation, and criticized the ChemRisk company’s role as an expert in that proceeding. Among other things, Foytlin wrote that ChemRisk has “a long, and on at least one occasion fraudulent, history of defending big polluters…” The article closes by asking whether “anyone will ever . . . make [things] right.”

In 2014, ChemRisk filed a defamation claim against the authors in Massachusetts. The defendants countered with an anti-SLAPP motion to dismiss, arguing that the defamation claim was based on their petitioning activities. The lower court judge, relying on the Fustolo opinion, denied the motion, and the defendants appealed.

As in Fustolo, it may very well have been the case that the article was likely to enlist public participation in petitioning activity. And, as in Fustolo, the case turned not on this issue, but on whether the defendants were exercising their own right of petition. Citing Fustolo, ChemRisk asserted that the defendants were merely reporting on the petitioning activity of others, not exercising their own protected rights. This time, the SJC disagreed, finding that in this case, unlike Fustolo, the authors were exercising their own rights to petition.

Reconciling Fustolo and Foytlin

So, one activist/journalist article in 2010 is not protected by the anti-SLAPP statute. Another in 2017 is protected. Both sets of defendants held themselves out as “journalists” in connection with their work. What gives? Is it simply the case that the expanded view of petitioning activity set forth in Town of Hanover has overruled Fustolo? No. According to the SJC, Fustolo is still good law, just distinguishable.

What is the distinguishing feature? Is it money? No. Hollander, the reporter in Fustolo, was paid for her articles, and the defendants in Foytlin were not. However, the Fustolo opinion expressly rejected compensation as the basis for its holding, and the Foytlin court makes no mention of the issue.

Rather, the distinguishing feature appears to be intent. The reporter in Fustolo had submitted an affidavit attesting to her attempts to be an “objective” journalist. That objectivity, according to Justice Lenk, “was pivotal to [that] decision in so far as the reporter was not exercising her own constitutional right to petition when authoring the challenged article.” Foytlin and Savage, on the other hand, emphasized that they were subjective bloggers. Citing the Merriam Webster dictionary, they argued that a “blog” by definition is a place where “someone writes about personal activities and experiences.” Justice Lenk’s opinion does not expressly incorporate this argument, but it does hold that Foytlin and Savage were “speaking for themselves at their own behest” and as a natural extension of Foytlin’s extensive activist efforts. Put more simply, because they were “advancing a cause in which they believed,” the anti-SLAPP statute protected them.

Bloggers, Pay Attention

Where does that leave bloggers? First, it’s important to recognize that, while the SJC did indicate a willingness to extend Massachusetts anti-SLAPP protection to those who blog their opinions about public issues and petitioning activity (lawsuits, government, etc.), it did not necessarily adopt the defendants’ argument that blogging is by definition a subjective petitioning exercise.

Second, it bears noting that in both Fustolo and Foytlin, the SJC was able to avoid making tough calls about the distinction between objectivity and subjectivity, because in both cases there appears to have been undisputed evidence of the authors’ intent: Hollander said she was objective, Foytlin said she was not. Easy. What happens when this issue of objectivity is disputed, you ask? Good question.

Until more case law clarifies the landscape, all you bloggers out there who write about petitioning activity (lawsuits, government, etc.) will need to make your best guess about whether anti-SLAPP protection applies based on the presence or absence of indicia of subjectivity. This might include the context in which your articles appear; whether the content expressly calls for further action; how you have characterized your own writing in the past; and whether your writing is related to other more traditional activism in which you have participated. Whether or not you call yourself a journalist, and whether or not you are paid, does not appear to matter. However, at least some professional journalists may have to choose between jettisoning the veneer of objectivity and giving up protection of the statute. If that doesn’t seem fair to you media pros, look at it this way. You’re no worse off than you were before last week.